PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 15 September 2019

The Claim of Sovereignty in International Law and against International Law

The Claim of Sovereignty in International Law and against International Law

Chapter:

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VIII The Claim of Sovereignty in International Law and against International Law

Source:

Sovereignty

Author(s):

Hermann Heller

, David Dyzenhaus

Publisher:

Oxford University Press

DOI:10.1093/oso/9780198810544.003.0010

Abstract and Keywords

This chapter considers the attempt of contemporary international law doctrine to minimize the concept of sovereignty. The attempt is made to draw its fangs by construing the nature of sovereignty as a kind of modest, legally normed capacity to act, as authority under international law, or as a discretionary sphere granted by international law. However, this operation can never succeed using the tools of international law, because international law is only possible as long as there are at least two absolutely independent territorial decision-making units. The sovereignty problem has become more complicated for members of the League of Nations and its Permanent International Court in The Hague. The principles of a treaty order free of domination on which these institutions rest have not fundamentally changed; voluntariness and unanimity are preserved under these principles.

Where contemporary international law doctrine does not completely eliminate the concept of sovereignty, it attempts at least to minimize it. The attempt is made to draw its fangs by construing the nature of sovereignty as a kind of modest, legally normed capacity to act, as authority under international law, or as a discretionary sphere granted by international law. What an illusion! This operation can never succeed using the tools of international law. For international law is only possible as long as there are at least two absolutely independent territorial decision-making units. And only as long as this is true does sovereignty in the sense of conclusive lawmaking that violates international law remain possible, which cannot be imagined as authority delegated by an international law system.

Juristically, this fact is expressed first of all in the doctrine, which has not been seriously contested, that international law is addressed only to states, and that for it to be valid domestically, it requires transformation by a state act of will that is particularly directed to this end.465 Nor can it be seriously contested that an act of state contrary to international law is law and remains law until a further act of state provides differently. All international law is realized only through acts of state! This proposition, however, would have already solved our problem. The possibility of law that violates international law and is conclusive can only be contested through the phrase ‘for that which must not, cannot be.’

And it has been contested with this phrase. We already know that the crux of legal rationalism is the defective act of state. If legal rationalism is to remain consistent, it always faces “the logical impossibility of ascribing a wrong … to the personification of law—of letting the will of the law will illegality.”466 Because he can only imagine valid international law if “the individual state law norms and the international law norms form a unified system,” Kelsen finds an international law delict “inconceivable,” but an act of state that violates international law is “null and void … not only under international law, but also under state law.”467

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Now, Kelsen’s view is such a slap in the face to the theory and practice of all nations that it has been rejected by international law experts of his own school.468 But even Verdroß, as a legal rationalist, had to construe the ‘state order’ as a “spinoff” of ‘the’ international legal order, and sovereignty accordingly as a “bundle of international legal obligations,” a discretionary sphere granted to the states by ‘international law’ that is “different in degree but not in kind from the discretion of domestic organs.”469

Here and nowhere else is where the knot of the sovereignty problem is gathered. “Here is Rhodes, there I jump!” [Hic Rhodus, hic salta!] Certainly, it is the same legal phenomenon of defective acts of state in the domestic and international law arenas that constitutes the unified fact of sovereignty. But because there cannot be above the universal unit of decision-making and effect a similar unit, the problem of sovereignty is therefore the problem of effectively guarding the guard; sovereignty is therefore something fundamentally different from a domestic sphere of discretion. First of all, domestic discretion is indeed a spinoff of a universal legal order, which is not ‘the’ international law. Second of all, discretion “against the law” does not, in principle, become law. But where it becomes law as a defective act of state, this happens not on the basis of a positive legal norm, but as the expression of sovereignty that asserts itself against law and nevertheless makes law. All defective acts of state are only conclusively normative to the extent they do not revoke an act of state emanating from the same or a superior position. This revocation, however, presumes, first of all, the potential universality, and, second, the actual effectiveness of a decision. The two qualities are joined only in a sovereign state. Above it is neither a universal decision-making unit nor a unit of effect that would prevent the act of state that is asserting itself against that decision from maturing into law. As long as there is international law and no world state, there must be many sovereign states, and thus the possibility that an act of state creates conclusive and unappealable new law through the breach of state and international law. That world history here becomes an earthly world court, that here only war can ultimately decide, is not a discovery of faithless and amoral imperialism, but an idea from which the entire Middle Ages, especially Thomas Aquinas, determined the concept of the prince, that is, the state concept of the time: “It is not within the capacity of a private person to make war because he can seek justice in the judgment of his superior.”470

Naturally there are and have also been, from the most ancient times, peaceful means of dispute settlement between states. Especially in recent decades, the states have created numerous international decision-making institutions suited to determine disputed law in numerous cases. But international law even today has no
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general decision-making units, and cannot have any universal ones as long as international law exists and states remain sovereign.

Until the World War, the international arbitral panels were such interstate decision-making institutions, based on voluntary agreement between two sovereign states, appointed for each individual case, terminable by one side, and functioning through judges who made their decisions in the name of the parties that freely chose them. Only second-tier cases were submitted to them for decision. It is clear that this type of dispute settlement in no way derogates from the states’ sovereignty.

The sovereignty problem has become more complicated for members of the League of Nations and its Permanent International Court in The Hague. The principles of a treaty order free of domination on which these institutions rest have not fundamentally changed; voluntariness and unanimity are preserved under these principles. The League of Nations and the Court unquestionably do not form a universal decision-making unit; the sovereignty of the states is guaranteed under this principle.471

The League of Nations, together with the international courts, is not a universal decision-making institution primarily because the so-called obligatorium, the absolute duty to settle disputes peacefully, does not exist and—as will be discussed shortly—cannot exist. All that is obligatory is the attempt to achieve a peaceful settlement. War, including aggressive war, is expressly envisaged, even though numerous conditions have been placed on its lawfulness. A lawful war is—if we do not take into account warlike actions that are termed execution—envisaged first of all for cases in which the Council, in a non-justiciable dispute, comes to a non-unanimous advisory opinion, of course irrespective of the objections of the parties to the dispute. Second, for cases in which both parties fail to acquiesce in the opinion. Third, when the Council fails to submit its report within six months or the arbitral judges do not submit their decision within a reasonable period.472

Above all, however, war is expressly envisioned in Article 15(8) of the Covenant: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.”473

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This provision is crucial to the nature of the League of Nations and the sovereignty of its members. The case provided for here is correctly called the sovereignty case; the first draft of Article 15(8) described it using the words “a question that is, in public law, the exclusive portfolio of the national legislative jurisdiction of one of the parties.” The same set of facts is also called a “domestic affair” [affaire domestique] or “reserved domain.”

If we try to understand this sovereignty case using the concepts we have developed, we must first determine its extent. In regard to form, it is indicated by the fact that non-arbitrable and non-judiciable issues are counted as part of it. According to dominant, though in places disputed, doctrine, substantively included in its ambit are vital interests, honor and independence, as well as the state’s constitutional law. In the nature of things, as we will soon see, the substance belonging within this area is highly indeterminate. The authors of the League of Nations Covenant, who adopted Article 15(8) into the Statute at the urging of Wilson and some neutral powers, were probably thinking primarily of the issue of the immigration of alien races, which was at that time a particularly important issue in American politics, of the Monroe Doctrine, customs tariffs, and citizenship.474 The draft law on ratification of the Versailles Peace Treaty, rejected by the United States Senate on March 19, listed, in addition to the above-mentioned matters, the issues of labor, coastal trade and trade in general, trafficking in women and children, and trafficking in opium and harmful drugs, and finally added the very typical wording, “and all other domestic questions.”475

There is an astonishing lack of clarity in the literature on the significance of the “exclusive competence” [compétence exclusive] in Article 15(8) of the Pact; but such astonishment is justified only to the extent that this lack of clarity was not politically intended. A large number of writers treat this “exclusive competence” as analogous to the jurisdiction of a state organ of the rule of law state, and the relationship between international law and the League of Nations, on the one hand, and the state, on the other hand, is discussed in such a manner as if it were a dispute over authority between two local tax offices in the same state province. Behind these kinds of conceptions is always the skewed idea of a universal international law order of decision-making and authority, a universal international law system that normalizes international law acts. Even the creation of international law that violates international law must ultimately be seen as being ‘normed’ by international law. This can easily be achieved by a juristic idealism, satisfied with value-free logical construction of the facts, through the theory of the “metamorphosis of the factual into the normative.”476 If one then accepts a contentless basic international law norm, the claim may indeed be made that “domestic law is also [dependent] on that basic norm,
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since the limits within which states may move and develop freely are likewise set by international law norms.”477 Now the problem of making law in violation of international law vanishes, and sovereignty is an authority no different from the independent sphere of activity of any mayor. We find similar reasoning in Politis in interpreting Article 15(8). He would like to avoid answering the question whether the state’s decision-making power is “recognized or merely tolerated” by international law, by using the phrase: “It would be most embarrassing to have to choose between the two.” But his opinion becomes clear in his statement that he finds it “in effect inconceivable that the law itself decides that such a human activity remains beyond its grasp.”478 This ‘law’ of Politis is identical to Kelsen’s universal system of law, through which the sovereignty of states is merely delegated as authority. Politis even assures us that the “reserved domain” is only “comprised of the sum of gaps in the law.”479 But to the “objective question” of who determines the limits of this “reserved domain,” we receive the answer: “In case of controversy … through international means”480—an all in all somewhat questionable decision-making unit, if one considers that conflicts tend generally to arise from the antagonism of public opinion.

All this reasoning fails to recognize that while the League of Nations is not a universal decision-making unit, the state is. It is not international law that delegates sovereignty, but the state that, through its acts of will, delegates certain powers to the League of Nations. Thus, we can enumerate the cases that represent a sovereign person’s obligations to international law, but not the substance of an “exclusive competence,” that is, a universal decision-making unit. One may speak of a competence-competence on the part of the state, a not very nice and not very clear phrase, which implies something similar to what our universality of decision-making means; the identification of competence and sovereignty is, however, the expression of a view that makes the state a fiction, in order to be able to make the fiction of a “world state.”

Any limitation on a universal territorial decision-making unit is only possible by treaty, and only in particular expressly normed areas. Any decision-making institution brought into being by treaty, be it an arbitral panel, a court, or even just political mediation, possesses clear limits drawn by the sovereignty of the delegating states. If a state has not subjected itself by treaty to any decision-making institutions, it is solely itself that decides on the limits of its activity, within the bounds of fundamental legal principles. The Senate of the United States was therefore fully empowered under international law to make the resolution of March 13, 1920 in which it declared, “The United States reserves to itself exclusively the right to decide what questions are within its domestic jurisdiction.”481

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See also Schücking/Wehberg, Satzung des Völkerbundes (see note 353), p. 88; see above, note 429 and Leon Bourgeois’s statement on January 24, 1924 in the French Senate, quoted in Carl Schmitt, Die Kernfrage des Völkerbundes, Berlin 1926 (Völkerrechtsfragen, vol. 18), p. 10; see also the discussion in the 6th session of the First League of Nations Commission of September 20, 1926, between Hurst, Barthelemy, Scialoja, and Latham; the last explained, in support of Hurst, that he believed that if one could not from the beginning limit “the future activity of the League, one should not forget that each country desires to be master of its internal affairs, and believes that it would be to the advantage of the League never to forget this,” Sociètè des Nations (ed.), Journal officiel, Supplément spécial (Séances pléniéres et Commissions), no. 45, Geneva 1926, p. 19 ff. (22).

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 15 September 2019